Jul 12, 2012

The right of publicity in video games

I've got a short essay up over at Gamasutra about the right of publicity in video games. The fundamental question is this -- if you create a game (or virtual world) and you want to include in that setting an indentifiable individual, do you need to pay a licensing fee to that person or the heir of that person?

If games are like books, and not a second class medium, the answer should be "no." If I write a book, and a character in the book has a chance encounter with William Shatner or Harrison Ford, the artistic use of that celebrity's identity in a fictional content should be protected by the First Amendment. In other word, Shatner or Ford should not have a right to prohibit the creation of literature that makes reference to them. If the reference is misleading, or false, or defamatory, of course, there would be a legal problem -- but if not, the use of the identity in a work of art should be fine.

Now that we have EMA v. Brown, I think it's past time to change that rule. Hopefully the many courts considering this issue in the next few years will get this question right and protect the creative freedoms of game designers. The case I talk about in the Gamasutra post is Hart v. EA. The amicus brief in the case can be found here at Harvard's Berkman Center, with more commentary on the issues raised.

Comments

1.

So does this mean that all those pop culture references in World of Warcraft ("Haris Pilton", "Amilya Airheart", "Olivia, Newton and John Burnside" etc.) are potentially infringing the rights of publicity of the people whose names they parody?

I guess this is why in movies when they need names, they use those of people they know so that if any random celebrity happens to have the same name, they can claim it's that of the person they know instead.

On the first, potentially yes -- I can't see how that's any different than the Tony Twist case I discuss in the essay. I don't think it's a good idea at all, but I don't think the claim would be frivolous in light of existing law.

And yes, I imagine there could be some reasonable caution in Hollywood about picking random names. Easier to avoid the risk.

So how does this work for trademark law? If, in WoW, they introduced go-faster boots called "Nykes" or they sold a go-faster boot enchantment called "swooosh", would that fall foul of any laws? It seems that Rights of Publicity are a little stronger than those, plus they don't need to be registered and they last forever.

Yes, that's the exact problem. In the "Nykes" case, there would be no product being sold (if there's no real money / virtual currency used to purchase) so there's no TM infringement. There would be no implied sponsorship by Nike of the game just because "Nykes" were an in-game object. But publicity rights don't have those limitations -- it's essentially "did you evoke a person's identity" and "did you do it in a commercial context"? If the answer is yes to both, you lose. The only real limitation is the First Amendment, that protects uses that occur in news reporting and artistic expression. But as I explain in the article, the balancing test doesn't always favor the artist.

So what this means, then, is that if you want to armour-plate your trademark, you should include in it the image or name of someone who is either alive or who has relatives that are alive?

Hmm. This means that you could parody Coca Cola or Nike in a game, but you couldn't parody Mrs Fields Cookies (because Mrs Fields is still alive and that's her name) or KFC (because the descendants of Col. Sanders are still alive and that's his face)?

It's not just an issue of artistic expression to use a celebrity's image without permission in a videogame. These games are not given away -- they are sold for big money. And while there's certainly artistic expression in the game that is created by very talented designers and programmers, including a celebrity as a character in a game is most definitely a commercial use -- and that's where the line seems it needs to be drawn. For all those arguing that publicity rights for celebrities should evaporate when used in videogames, do you believe that copyrights and trademarks should evaporate also? Should a competitor of one videogame company be able to copy and use a competitor's identifiable characters in their own video game? Should a videogame company be allowed to insert the Beatles' "Hey Jude" audio track into the game without paying a royalty for that use? Videogames are a hugely commercial, profitable industry -- with some even including product commercials within the game. Why should they not have to play by the same rules that other businesses do? Aren't videogames similar to movies? Should a film studio be able to get around paying George Clooney in a role by creating a digital recreation of him and use him in the film for free? The arguments for free use of people's personas and identities as integral characters in a game without permission seem hugely improper.

Hi Michael -- no, I don't think copyright or trademark rights should evaporate. But I'm okay with publicity rights evaporating if celebrity depictions don't mislead the public about endorsement or defame the celebrity.

You're saying: 1) video games make a lot of money (true -- at least sometimes!) and 2) you think it's improper when they make that money and don't compensate identifiable individuals who appear in the games. I don't see how the second point follows the first. By your logic, since People magazine and other gossip mags make a lot of money, they should pay some of that money to the celebrities they sell, right?